Damages for emotional injury on its own can be difficult to obtain in North Carolina injury lawsuits. Emotional injury is generally recognized as harm to one’s emotional well-being, resulting from the negligent or intentional act of someone else.

There is no set statute that addresses the issue, but North Carolina courts have held that emotional injury may be compensable if:

Claimant sustains some bodily injury in addition to the emotional injury;

Witnessed bodily injury to or death of another person (particularly someone with whom claimant was especially close);

The emotional injury can be classified as “severe and disabling.”

For example, a brother who witnesses his sister’s death in a horrific accident could potentially recover for damages, even if he himself wasn’t physically hurt. However, if he only learned about the accident after the fact or chose to watch a video recording of it, he likely won’t be able to recover.

Recently, an interesting personal injury case was raised in Wyoming when a father sued his employer – who was also his son’s employer – when a workplace accident resulted in his son’s death.

In Collins v. COP Wyoming, Inc., defendant employer argued all claims were barred by workers’ compensation exclusivity provisions. The exclusive remedy provision in North Carolina workers’ compensation law is similar to that in Wyoming, and it basically says workers can’t sue their employer for work-related injuries, so long as:

The employer was covered by workers’ compensation insurance;

The worker was in fact an employee (not an independent contractor);

The company did not purposely cause the worker’s injury or act with wanton disregard for worker safety.

But in this case, employee in question wasn’t suing for physical injury to himself. And in fact, workers’ compensation doesn’t cover at all damages for emotional injury or even pain and suffering.

According to court records, both father and son were working on the same construction site when a supervisor operating a track hoe struck plaintiff’s son in the head with the bucket of the track hoe. The young man was severely injured. Plaintiff rushed to his son’s side immediately and tried to render first aid. In spite of those efforts, plaintiff’s son died.

The son’s estate received workers’ compensation benefits as a result of his death.

Subsequently, plaintiff filed a lawsuit against both the company and the supervisor, alleging negligent infliction of emotional distress. Both defendants responded with a motion to dismiss, arguing the lawsuit against them was barred because of the exclusivity provision of the state’s workers’ compensation law.

Trial court held a hearing and granted that motion, finding that because son’s injury and death was covered under workers’ compensation law and this claim was derivative of that, this claim was barred.

Plaintiff appealed and the Wyoming Supreme Court reversed. The court determined plaintiff’s claim was in fact separate. It was a claim for mental injury to him – not his son – that was not compensable under workers’ compensation laws, and therefore, neither the company nor the supervisor were entitled to immunity on that basis.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.